FILED

NOT FOR PUBLICATION

NOV 18 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE BANK OF NEW YORK MELLON, No. 20-55993 FKA The Bank of New York, as Trustee for the Certificate Holders CWALT, Inc. D.C. No. Alternative Loan Trust 2006-OC8 5:18-cv-01044-PSG-MRW Mortgage Pass-Through Certificates, Series 2006-OC8,

MEMORANDUM*

Plaintiff-counter- defendant-Appellee,

v.

ALAN DAVID TIKAL, as Trustee of the KATN Revocable Living Trust; CAA, INC., a Nevada corporation,

Defendants,

and

MARGUERITE DESELMS, individually, and as Trustee of The Circle Road Revocable Living Trust Dated November 11, 2010,

Defendant-counter-claimant- Appellant.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, Chief District Judge, Presiding

Submitted November 16, 2021** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and NGUYEN, Circuit Judges.

Marguerite DeSelms appeals pro se from the district court’s judgment in

favor of Bank of New York Mellon (BONY) on BONY’s claims for cancellation

of a 2010 Substitution of Trustee and Full Reconveyance document, and for a

declaration that a 2006 deed of trust (the First Deed of Trust) was valid and

reflected BONY’s senior lien on a property DeSelms had purchased in San

Bernardino, California (the Property). DeSelms also appeals the district court’s

award of attorney’s fees to BONY.1 BONY brought this action in its capacity as

trustee for the certificateholders of CWALT, Inc., Alternative Loan Trust 2006-

OC8, Mortgage Pass-Through Certificates, Series 2006-OC8. We affirm.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 The district court granted summary judgment to BONY on DeSelms’ counterclaims as well, but DeSelms has not challenged that aspect of the judgment on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). 2 Reviewing de novo,2 we conclude that the district court did not err in

entering summary judgment on BONY’s claims. Although DeSelms contended

that the 2010 Substitution of Trustee and Full Reconveyance extinguished

BONY’s interest in the Property, there was no genuine issue of material fact that

BONY was entitled to cancellation of that document. See id. BONY presented

evidence that the document was invalid because: it stated that the KATN Trust was

the beneficiary of the First Deed of Trust, even though the KATN Trust had no

interest therein; and BONY suffered pecuniary loss because it was unable to

foreclose on the Property. See Cal. Civ. Code §§ 3412–13; U.S. Bank Nat’l Ass’n

v. Naifeh, 205 Cal. Rptr. 3d 120, 128 (Ct. App. 2016). For the same reason, the

district court correctly determined that declaratory judgment was appropriate

because there was a substantial controversy between the parties regarding the

validity of the First Deed of Trust, and the evidence showed that document was

valid. See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 272–73, 61 S. Ct.

510, 512, 85 L. Ed. 826 (1941).

None of DeSelms’ arguments to the contrary are persuasive. BONY had

standing to challenge the 2010 Substitution of Trustee and Full Reconveyance

2 Evon v. Law Offs. of Sidney Mickell, 688 F.3d 1015, 1023–24 (9th Cir. 2012). 3 because that document purported to extinguish BONY’s interest in the First Deed

of Trust. See Cal. Civ. Code § 3412; cf. Yhudai v. IMPAC Funding Corp., 205 Cal.

Rptr. 3d 680, 683 (Ct. App. 2016). BONY was the proper party3 to bring this

action, was not required to register in California,4 and provided sufficient evidence

of its existence. DeSelms’ bare assertion that BONY’s documents were forged

does not create a genuine issue of material fact in that regard. See Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348,

1356, 89 L. Ed. 2d 538 (1986). Moreover, the district court correctly determined

that DeSelms presented no competent evidence supporting her contentions

regarding the purported separation of the note from the deed of trust, the purported

assignment of the loan into a closed trust, and the purported payment of her

mortgage debt from other sources. See id.

We further conclude that the district court did not abuse its discretion in

awarding BONY $77,777.50 in attorney’s fees pursuant to Federal Rule of Civil

Procedure 54(d)(2). See Stetson v. Grissom, 821 F.3d 1157, 1163 (9th Cir. 2016);

see also United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009) (en

banc); MRO Commc’ns, Inc. v. Am. Tel. & Tel. Co., 197 F.3d 1276, 1281 (9th Cir.

3 See Moeller v. Superior Court, 947 P.2d 279, 283 n.3 (Cal. 1997); Fed. R. Civ. P. 17(b)(3). 4 See Cal. Corp. Code § 191(d); see also id. § 2105(a). 4 1999). The valid First Deed of Trust explicitly provides for attorney’s fees in these

circumstances,5 and the district court’s lodestar calculation was well-supported by

the record. See Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028–29 (9th

Cir. 2000).

AFFIRMED.

5 See Port of Stockton v. W. Bulk Carrier KS, 371 F.3d 1119, 1121 (9th Cir. 2004); Cal. Civ. Proc. Code § 1021. 5